United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
J. NATHAN UNITED STATES DISTRICT JUDGE.
matter arises from pro se Plaintiff Eva Levin's suit to
enforce a United States Citizenship and Immigration Services
Affidavit of Support, Form 1-864, against her now ex-husband,
counseled Defendant Robert Barone. Barone and Levin each move
for summary judgment. For the reasons below, Barone's
motion is granted and Levin's motion is denied.
considering the facts of this case, the Court briefly
describes the statutory and legal framework at issue.
law prohibits a citizen of the United States from sponsoring
for admission to the country any non-citizen who "is
likely at any time to become a public charge." 8 U.S.C.
§ 1182(a)(4)(A). A person who sponsors his non-citizen
spouse or fiancee for admission must therefore execute an
Immigration Services Affidavit of Support, Form 1-864, 8
C.F.R. § 213a.2(a), (b), in which "the sponsor
agrees to provide support to maintain the sponsored alien at
an annual income that is not less than 125 percent of the
Federal poverty line during the period in which the affidavit
is enforceable, " 8 U.S.C. § 1183a(a)(1)(A).
Form 1-864 forms a legally binding and enforceable contract
between the sponsor executing the form and the sponsored
immigrant. Cheshire v. Cheshire, 05-cv-00453 (TJC)
(MCR), 2006 WL 1208010, at *3 (M.D. Fla. May 4, 2006)).
Indeed, the Immigration and Nationality Act explicitly states
that the Affidavit of Support is "legally enforceable
against the sponsor by the sponsored alien." 8 U.S.C.
§ 1183a(a)(1)(B). A sponsor's obligations under Form
1-864 may be terminated in five specific circumstances, but
not as a result of divorce or divorce proceedings. See
Shumye v. Felleke, 555 F.Supp.2d 1020, 1024 (N.D. Cal.
2008) (explaining that obligations terminate if "(1) the
sponsor dies, (2) the sponsored immigrant dies, (3) the
sponsored immigrant becomes a U.S. citizen, (4) the sponsored
immigrant permanently departs the U.S., or (5) the sponsored
immigrant is credited with 40 qualifying quarters of
Factual and Procedural Background
January 2010, Barone, a U.S. citizen, married Levin, a
citizen of Sweden. Dkt. No. 92, Ex. A at 1 (State Court
Decision) at 2; Dkt. No. 89 at 5 (Defendant's 56.1
Statement) at ¶¶ 3-5; Dkt. No. 97 (Plaintiffs 56.1
Response) at ¶¶ 3-5. As part of the process for
obtaining a legal immigration status for Levin, Barone signed
Affidavit of Support, Form 1-864, affirming that he would
provide adequate means of support for Levin. See
Dkt. 92, Ex. E at 17 (Barone Affidavit) at ¶ 6. Around
2011, the parties separated. Id. at ¶ 9.
January 27, 2014, Levin brought this action in federal court
seeking to require Barone's compliance with the Affidavit
of Support. Dkt. No. 2. Levin has requested specific amounts
of money for at least each year from 2011 through 2016.
See Dkt. No. 48. It appears that Levin has worked
recently, but it is unclear how much money Levin earned from
that employment. See Dkt. No. 66.
the same time that Levin filed this suit, Barone brought an
action for divorce in New York Supreme Court. See
State Court Decision at 2; Defendant's 56.1 Statement at
¶ 6; Plaintiffs 56.1 Response at ¶ 6; Dkt. No. 92,
Ex. E at 60 (Action for a Divorce).
the instant case was filed before the state court action
appears to be disputed. See Defendant's 56.1
Statement " ¶¶ B, 7; Plaintiffs 56.1 Response
at ¶¶ B, 7. Barone claims that this case was filed
after the divorce proceeding, but the Action for a Divorce
suggests that the divorce proceeding was initiated either the
same day as, or one day after, this action was commenced.
See Dkt. No. 2; Defendant's 56.1 Statement
¶¶ B, 7; Action for a Divorce.
September 5, 2014, Barone filed a motion to dismiss
Levin's complaint. Dkt. No. 17. The Court denied that
motion but stayed the case pending the duration of the state
court divorce proceeding. Dkt. No. 36.
April 2, 2015, the state court explained that Levin's
annual income was $13, 000, State Court Decision at 5, and
noted that when Levin had worked as a dancer, she had earned
$3, 000 a week, Dkt. No. 92, Ex. B (Transcript of State Court
Proceeding) at 17:13. It then ...